EXHIBIT 10.8.3
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SECOND ADDENDUM TO
JOINT DEVELOPMENT AND LICENSE AGREEMENT
THIS SECOND ADDENDUM TO JOINT DEVELOPMENT AND LICENSE AGREEMENT is
made as of the _____ day of February, 1996 (the "EFFECTIVE DATE"), among
Nintendo Co., Ltd. ("NCL"), Nintendo of America Inc. ("NOA") (NCL and NOA are
referred to collectively as "COMPANY"), Silicon Graphics, Inc., and MIPS
Technologies, Inc. (collectively referred to as "SGI").
BACKGROUND
Company and SGI are parties to a "JOINT DEVELOPMENT AND LICENSE
AGREEMENT", dated August 20, 1993, as supplemented by the "First Addendum to
Joint Development and License Agreement", dated February 5, 1994 (collectively,
the "AGREEMENT"). Company and SGI have agreed to enter into this Second
Addendum as it relates to the XXXXXX of certain patents rights, as described
herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS.
(a) Unless otherwise defined in this Second Addendum, all capitalized
words used in this Second Addendum shall have the meanings set forth in the
Agreement.
(b) Section 1.8. "COMPANY PRODUCTS" is hereby revised to add the phrase
"and/or Foreground Technology" immediately after the term "Developed
Technology."
(c) Section 1.16, "FILING" is hereby revised to add the phrase "or
Foreground Technology" immediately after the term "Developed Technology."
(d) The last sentence of Section 1.23, "TECHNOLOGY", is hereby revised to
read as follows:
Technology is either Background Technology, Developed Technology
or Foreground Technology.
(e) A new Section 1.26 is hereby added to the Agreement as follows:
1.26 "FOREGROUND TECHNOLOGY" means XXXXXX
(f) A new Section 1.27 is hereby added to the Agreement as follows:
1.27 "COPROCESSOR COMMAND SET" means XXXXXX
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(g) A new Section 1.28 is hereby added to the Agreement as follows:
1.28 "MICROCODE/LIBRARIES" means XXXXXX
(h) A new Section 1.29 is hereby added to the Agreement as follows:
1.29 "PATENT" means letters patent issued under laws of the
United States, reissue patents, divisional patents, reexamination
patents, continuations, continuations-in-part and the foreign
counterparts of any of the foregoing.
(i) A new Section 1.30 is hereby added to the Agreement as follows:
1.30 "CROSS LICENSE" means an agreement between either party to
this Agreement and a third party, other than a Licensee, effective
prior to the Effective Date of this Second Addendum. pursuant to
which such party and the third party grant each other licenses to
patents developed or acquired during the term of such agreement,
which licenses are granted in settlement of infringement claims.
(j) A new Section 1.31 is hereby added to the Agreement as follows:
1.31 "COPROCESSOR MICROINSTRUCTION SET" means XXXXXX
(k) A new Section 1.32 is hereby added to the Agreement as follows:
1.32 "COPROCESSOR" means the Application Specific Integrated
Circuit developed by SGI pursuant to Schedule A for incorporation
in the Consumer Hardware.
(I) A new Section 1.33 is hereby added to the Agreement as follows:
1.33 "DEVELOPER'S MANUAL" shall mean all versions of the Nintendo
64 Developer's Manual, covering the topics listed in Schedule D,
developed and delivered by SGI to Company pursuant to this
Agreement.
(m) A new Section 1.34 is hereby added to the Agreement as follows:
1.34 "DEVELOPMENT ENVIRONMENT" shall mean all versions of the
software listed in Schedule D, developed and delivered by SGI to
Company pursuant to this Agreement for use by Packaged Software
developers.
(n) A new Section 1.35 is hereby added to the Agreement as follows:
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1.35 "MASK WORK" means the layout of the Coprocessor.
2. A new Schedule C, as attached to this Second Addendum, is hereby added
to the Agreement.
3. A new Schedule D, as attached to this Second Addendum, is hereby added
to the Agreement.
4. The following is hereby added to the end of Section 6.2 of the
Agreement:
SGI and Company shall use reasonable efforts to pursue and to
prosecute Filings applicable to the invention identified as
"Invention 2" in Schedule C, which the parties acknowledge is
directed primarily to the protection of Developed Technology. As
provided in this Section 6.2, Company shall have the
administrative responsibility for such Filings.
5. CONFIDENTIALITY. New Sections 8.9, 8.10 and 8.11, which the parties
agree shall be effective as of the effective date of the Agreement, are hereby
added to the Agreement as follows:
8.9 CONFIDENTIALITY OF COMPANY TECHNOLOGY. SGI acknowledges
Company's representation that the Company Technology constitutes
the valuable proprietary and confidential information of Company,
and agrees to (i) retain in confidence the Company Technology,
(ii) restrict the use of and access to the Company Technology to
its employees to whom disclosure is necessary in connection with
this Agreement, and to authorized subcontractors, (iii)
appropriately bind each employee to whom any such disclosure is
made to hold the Company Technology in confidence, and (iv) not to
sell, lease, transfer or otherwise disclose the Company Technology
to any third party except as permitted by this Agreement,
provided, however, that SGI may disclose the Company Technology to
its agents and consultants; if necessary or appropriate in
furtherance of SGI's development work under this Agreement, under
the terms and conditions of a signed, written confidential
disclosure agreement with terms and conditions which prohibit
disclosure to other parties, and which are otherwise at least as
restrictive as the terms of subsections (i)-(iii) of this Section
8.9. Without limiting the foregoing, SGI agrees that it will treat
the Company Technology with at least the same degree of care as it
would its own highly proprietary information.
8.10 CONFIDENTIALITY OF FOREGROUND TECHNOLOGY. SGI and Company
acknowledge that the Foreground Technology constitutes their
valuable and proprietary information. Except to the extent that
any Foreground Technology is described in any Patent, and except
as otherwise agreed in writing by the parties, each of SGI and
Company agrees to (i) retain in confidence the Foreground
Technology, (ii) restrict
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the use of and access to the Foreground Technology to its
employees to whom disclosure is necessary or permitted in
connection with the exercise of their rights in the Foreground
Technology as provided in this Agreement, and to authorized
licensees and subcontractors, (iii) appropriately bind each
employee to whom any such disclosure is made to hold the
Foreground Technology in confidence, and (iv) not sell, lease,
transfer or otherwise disclose the Foreground Technology to any
third party except to licensees permitted by this Agreement and to
its agents or consultants under the terms and conditions of a
signed, written confidential disclosure agreement with terms and
conditions which prohibit disclosure to other parties, and which
are otherwise at least as restrictive as the terms of subsections
(i)-(iii) of this Section 8.10. Without limiting the foregoing,
SGI agrees that it will treat the Foreground Technology with at
least the same degree of care as it would its own highly
proprietary information.
8.11 CONFIDENTIALITY OF DEVELOPED TECHNOLOGY. SGI and Company
acknowledge that the Developed Technology constitutes their
valuable and proprietary information. Except to the extent that
any Developed Technology is described in any Patent, and except as
otherwise agreed in writing by the parties, each of SGI and
Company agrees to (i) retain in confidence the Developed
Technology, (ii) restrict the use of and access to the Developed
Technology to its employees to whom disclosure is necessary or
permitted in connection with the exercise of their rights in the
Developed Technology as provided in this Agreement, and to
authorized licensees and subcontractors, (iii) appropriately bind
each employee to whom any such disclosure is made to hold the
Developed Technology in confidence, and (iv) not sell, lease,
transfer or otherwise disclose the Developed Technology to any
third party except to licensees permitted by this Agreement and to
its agents or consultants under the terms and conditions of a
signed, written confidential disclosure agreement with terms and
conditions which prohibit disclosure to other parties, and which
are otherwise at least as restrictive as the terms of subsections
(i)-(iii) of this Section 8.11. Without limiting the foregoing,
SGI agrees that it will treat the Developed Technology with at
least the same degree of care as it would its own highly
proprietary information.
6. The following is hereby added to the end of Section 9.3(b) of the
Agreement:
As of the effective date of this Second Addendum, SGI represents
and warrants to Company that, to the best of SGI's actual
knowledge, SGI has provided Company with a copy of (i) all patent
applications filed by SGI whose claims would be infringed by the
unauthorized manufacture, use or sale of the Consumer Hardware
and/or the Packaged Software incorporating those components of the
Consumer
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Hardware and/or the Packaged Software developed by SGI pursuant to
this Agreement; and (ii) all patent applications currently being
prepared by SGI whose claims, as currently drafted, would be
infringed by the unauthorized manufacture, use or sale of Consumer
Hardware and/or the Packaged Software incorporating those
components of the Consumer Hardware and/or the Packaged Software
developed by SGI pursuant to this Agreement. If, subsequent to the
effective date of this Second Addendum, SGI learns of any such
patent application or if any such claim is added to any such
application, SGI shall promptly notify Company.
7. INTELLECTUAL PROPERTY INDEMNITY. Sections 9.5 and 9.6 of the
Agreement are hereby deleted in their entirety and replaced with the following:
9.5 SGI INTELLECTUAL PROPERTY INDEMNIFICATION. SGI will defend,
indemnify, and hold harmless Company and its Affiliates,
directors, officers, employees and agents against any claim, suit
or proceeding alleging that the XXXXXX or use thereof infringes or
misappropriates any U.S. XXXXXX copyright, mask work, trade
secret, patent or other intellectual property, proprietary or
contract rights of any third party and against any damages or
liability resulting from such claim, suit or proceeding,
including, without limitation, reasonable attorneys' fees and
other costs and expenses, provided that (i) Company gives SGI
notice of the claim, suit or proceeding promptly after
commencement thereof (or, if later, promptly after Company learns
that such claim, suit or proceeding relates to XXXXXX), (ii) SGI
may not settle any claim, suit or proceeding without the prior,
written consent of Company which consent shall not be unreasonably
withheld, provided that if Company refuses to consent to
settlement acceptable to the plaintiff(s) and proposed by SGI to
Company, SGI's total liability under this Section 9.5 shall be
limited to the amount of the proposed settlement and attorney's
fees incurred as of the date of SGI's request for Company's
consent, and (iii) Company provides SGI with all reasonable
assistance requested by SGI in connection with the defense and/or
resolution of any such claim, suit or proceeding, at SGI's
expense. Notwithstanding the defense obligation of SGI under this
Section 9.5, Company shall have the right, at its own expense, to
appoint its own counsel to participate in any claim, suit or
proceeding, and SGI shall cooperate with Company and such counsel.
If there is a final determination of infringement or
misappropriation, SGI shall, at its option, use reasonable efforts
to, (i) replace or modify any component of XXXXXX with a
functionally equivalent noninfringing component that conforms to
the requirements of this Agreement, or (ii) obtain a license for
Company to use XXXXXX Notwithstanding the foregoing, SGI shall
have no liability for a claim, suit or proceeding to the extent
based on (a) modification of XXXXXX by or for Company (other than
by SGI), or (b)
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Company's use of the XXXXXX with Accessories not supplied by SGI,
or (c) Company's use of a version of the XXXXXX that was not at
the time of use the most recent version provided by SGI to
Company. For purposes of this Section 9.5, XXXXXX SGI'S LIABILITY
UNDER THIS SECTION 9.5 SHALL IN NO EVENT EXCEED XXXXXX
9.6 COMPANY INTELLECTUAL PROPERTY INDEMNIFICATION. Company will
defend, indemnify, and hold harmless SGI and its Affiliates,
directors, officers, employees and agents against any claim, suit
or proceeding alleging that the XXXXXX or use thereof infringes or
misappropriates any U.S. XXXXXX copyright, mask work, trade
secret, patent or other intellectual property, proprietary or
contract rights of any third party and against any damages or
liability resulting from such claim, suit or proceeding,
including, without limitation, reasonable attorneys' fees and
other costs and expenses, provided that (i) SGI gives Company
notice of the claim, suit or proceeding promptly after
commencement thereof (or, if later, promptly after SGI learns that
such claim, suit or proceeding relates to XXXXXX), (ii) SGI gives
Company sole authority to defend and/or resolve any such claim,
suit or proceeding or the portion thereof relating to XXXXXX and
(iii) SGI provides Company with all reasonable assistance
requested by Company in connection with the defense and/or
resolution of any such claim, suit or proceeding, at Company's
expense. Notwithstanding the defense obligation of Company under
this ▇▇▇▇▇▇▇ ▇.▇, ▇▇▇ shall have the right, at its own expense, to
appoint its own counsel to participate in any claim, suit or
proceeding, and Company shall cooperate with SGI and such counsel.
Notwithstanding the foregoing, Company shall have no liability for
a claim, suit or proceeding to the extent based on (a)
modification of the XXXXXX or (b) SGI's use of the XXXXXX with
equipment or components not supplied by Company. For purposes of
this Section 9.6, XXXXXX COMPANY'S LIABILITY UNDER THIS SECTION
9.6 SHALL IN NO EVENT EXCEED XXXXXX
8. RIGHTS IN FOREGROUND TECHNOLOGY. A new Article 14.0 is hereby added to
the Agreement as follows:
14.0 RIGHTS IN FOREGROUND TECHNOLOGY.
14.1 XXXXXXXXXXXX
14.2 SGI RIGHTS IN FOREGROUND TECHNOLOGY. XXXXXXXXXXXX SGI's
rights in the Foreground Technology shall survive the expiration
or termination of this Agreement and shall continue until the
expiration of the last Patent to expire that would be infringed by
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the manufacture, use or sale of any Foreground Technology.
14.3 COMPANY RIGHTS IN FOREGROUND TECHNOLOGY. XXXXXX Company
agrees that Company shall only have (a) the worldwide,
nontransferable (except to Company's authorized subcontractors)
right to use the Foreground Technology only in combination with
the Licensed Background Technology and the Developed Technology
for purposes of the design, manufacture, use, sale and/or
distribution of Company Products, and (b) the worldwide right to
grant nonexclusive licenses to Licensees to use the Foreground
Technology, only in combination with the Licensed Background
Technology and the Developed Technology, for purposes of the
design, manufacture, use, sale and/or distribution of Packaged
Software, Accessories, Coin Operated Software and/or Coin Operated
Hardware. All such licenses shall be in writing and shall be
pursuant to a form of agreement incorporating license grant and
proprietary rights provisions approved in writing by SGI, which
approval shall not be unreasonably withheld. Company shall have no
obligation to obtain the consent of SGI, or to account to or to
share proceeds with SGI, on account of such licensing or use of
the Foreground Technology as permitted in this Section 14.3.
Company's rights in the Foreground Technology shall commence as of
the effective date of this Second Addendum and shall survive the
expiration of the term of this Agreement and shall continue until
the expiration of the last Patent to expire that would be
infringed by the unauthorized manufacture, use or sale of any
Foreground Technology. If the parties succeed in obtaining Patents
XXXXXX, and which would be infringed by the manufacture, use or
sale of any Foreground Technology, SGI will not assert a claim
against Company or a Licensee for infringement of any such Patent
on account of Company's or a Licensee's manufacture, use or sale
of such Foreground Technology in products other than Company
Products; provided, however, that SGI reserves the right to assert
a claim against Company for breach of this Agreement if Company
manufactures, uses, sells or licenses any products other than
Company Products which use Foreground Technology.
14.4 COOPERATION OF THE PARTIES IN FILINGS. The parties shall
use reasonable efforts to pursue and prosecute Filings applicable
to the Foreground Technology. All Filings applicable to the
Foreground Technology will be made at a time when appropriate
during the development or after completion of the Foreground
Technology XXXXXX. Company shall have the primary administrative
responsibility for Filings with respect to the Foreground
Technology, and the parties will cooperate with respect to Filings
on the Foreground Technology (including with respect to claim
amendments). Silicon Graphics will bear
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all fees and out-of-pocket expenses payable to Sterne, Kessler,
▇▇▇▇▇▇▇▇▇ and ▇▇▇ in connection therewith, and Company shall bear
all other filing fees, attorneys' fees and out-of-pocket expenses
incurred in connection therewith. As used herein, "ADMINISTRATIVE
RESPONSIBILITY" means the preparation of any documents required
for a Filing, and the submission thereof to the appropriate
governmental entity. If SGI has not yet received a proposed Filing
from Company on an item of Foreground Technology, and SGI believes
that a Filing should be made with respect thereto, SGI may submit
a written request to Company that Company proceed with the
preparation of such Filing, provided, however, that Company may,
in its sole discretion, proceed or decline to proceed with the
preparation of such Filing. If Company declines to prepare and
submit a Filing on an item of Foreground Technology, SGI may
proceed with the preparation and submission of such Filing at
SGI's expense. In either case. a party preparing a Filing shall
submit such Filing to the other party for its review and approval
prior to any submission to any governmental entity. A Filing shall
be deemed accepted by the receiving party if the receiving party
does not provide written notice of rejection to the submitting
party within thirty (30) (or such shorter period as the parties
may agree upon) days after the submitting party's notice thereof.
If a party rejects a Filing, it shall include with its rejection
notice a detailed description of its reason(s) for rejection, and
shall make specific suggestions as to any modifications which it
believes should be made to the form or content of such Filing
prior to submission. If the submitting party believes that the
modifications suggested by the receiving party are inappropriate,
the submitting party's Coordinator shall contact the receiving
party's Coordinator, and the Coordinators shall arrange and hold a
meeting or discussion between appropriate representatives of the
parties, at a mutually acceptable time and place, to determine a
mutually acceptable form, content and time for the proposed
Filing. Each party shall provide the other with copies of any
correspondence, materials or communications submitted to or
received from a governmental entity or a third party relating to
any Filing. SGI will provide such information regarding the
Background Technology, Foreground Technology and Developed
Technology as Company may reasonably request for purposes of
permitting Company and its advisors to evaluate actual or
potential infringement claims directed at Company Products.
Nothing in this Section 14.4 shall be interpreted to expand SGI's
obligations under Section 9.5.
14.5 ENFORCEMENT OF RIGHTS IN FOREGROUND TECHNOLOGY. Before
initiating any action against an alleged infringer of any rights
in the Foreground Technology, each party (the "ENFORCING PARTY")
shall contact the other party to confirm that the alleged
infringer has not been granted a license to use the Foreground
Technology
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by the other party or has not purchased from the other party
products whose use would entitle the alleged infringer to use the
Foreground Technology. If the alleged infringer has not obtained
such a license or purchased such products, the Enforcing Party
shall have the right, without further consent of the other party,
to take such steps as it chooses, in its sole discretion, to
enforce its rights XXXXXX and the other party shall provide such
reasonable assistance as the Enforcing Party may request in
connection therewith, provided either that such assistance does
not require any out-of-pocket expenditures by the other party or
that the Enforcing Party agrees to reimburse any such
out-of-pocket expenses incurred by the other party. The Enforcing
Party shall be entitled to retain all amounts recovered from the
alleged infringer in connection with the litigation and/or
settlement of any such action. The Enforcing Party shall defend,
indemnify and hold harmless the other party and its Affiliates
from and against any claim, suit or proceeding initiated against
the other party by any alleged infringer in connection with or in
response to actions initiated against the alleged infringer by the
Enforcing Party, provided that (i) the other party gives the
Enforcing Party notice of the claim, suit or proceeding promptly
after commencement thereof, (ii) the other party gives the
Enforcing Party sole authority to defend and/or resolve any such
claim, suit or proceeding, and (iii) the other party gives the
Enforcing Party all reasonable assistance requested by the
Enforcing Party in connection with the defense and/or settlement
of the claim, suit or proceeding, at the Enforcing Party's
expense.
14.6 MICROCODE/LIBRARIES, COPROCESSOR COMMAND SET, COPROCESSOR
MICROINSTRUCTION SET, AND MASK WORK. SGI will deliver to Company
the Microcode/Libraries, in source code and object code forms, the
Microcode/Libraries development environment, and documentation of
the Coprocessor Command Set and the Coprocessor Microinstruction
Set, at a time to be mutually agreed upon in writing by SGI and
Company. SGI and Company acknowledge and agree that XXXXXX (d) all
Developed Technology incorporated in the Microcode/Libraries,
Coprocessor Command Set, Coprocessor Microinstruction Set, and the
Mask Work shall be subject to the provisions of Sections 6.4 and
6.5 applicable to the Developed Technology. XXXXXX
14.7 FOREGROUND TECHNOLOGY CROSS LICENSES. XXXXXX neither party
shall have the right to license the Foreground Technology to a
third party pursuant to a Cross License unless it obtains the
prior, written agreement of the other party to this Agreement.
14.8 LIMITATIONS ON SGI'S USE OF DEVELOPED
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TECHNOLOGY. In addition to the provisions of Sections 6.4 and
6.5, XXXXXX
14.9 XXXXXX
14.10 SOFTWARE DEVELOPMENT BY COMPANY AND LICENSEES. As an
owner of the copyrights in the Microcode/Libraries and the
Coprocessor Microinstruction Set, the Developer's Manual and the
Development Environment Company shall have the right to develop,
reproduce and distribute derivative works thereof, and to grant
Licensees the right to develop, reproduce and distribute
derivative works thereof. SGI makes no claim of rights in any
portions of such derivative work(s) developed by Company and/or
any Licensee.
9. WARRANTY EXCLUSION. Section 9.2. "Warranty Exclusion"s shall be
amended to insert the phrase "or Foreground Technology" immediately following
the phrase "Developed Technology", wherever it appears in such section.
10. LIMITATION OF LIABILITY. Article 10.0 is hereby revised to read as
follows:
10.0 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL,
INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT
LIMITATION LOSS OF PROFIT OR DATA) WHETHER OR NOT ADVISED OF THE
POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR
REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INABILITY
TO USE THE BACKGROUND TECHNOLOGY, THE FOREGROUND TECHNOLOGY, OR
OTHERWISE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER
PARTY TO THE OTHER EXCEED XXXXXX. THE ESSENTIAL PURPOSE OF THIS
PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES
ARISING OUT OF THIS AGREEMENT.
11. SURVIVAL OF OBLIGATIONS. Section 11.4 is hereby revised to add the
provisions of Article 14.0 to the list of provisions setting forth rights and
obligations of the parties that survive termination of the Agreement.
12. EFFECT OF ADDENDUM. Except as amended and supplemented by this Second
Addendum, the Agreement remains in effect pursuant to its terms, and is hereby
ratified and confirmed.
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IN WITNESS WHEREOF, the parties have executed this Second Addendum as of
the date first written above.
NINTENDO CO., LTD. NINTENDO OF AMERICA INC.
By: /s/ (illegible) By: /s/ (illegible)
-------------------
Title: Senior Managing Director Title: Executive Vice President
February 20, 1996
SILICON GRAPHICS, INC. MIPS TECHNOLOGIES, INC.
By: /s/ (illegible) By: /s/ (illegible)
-------------------
Title: President & Chief Title: President
Operating Officer
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SCHEDULE C
Invention l XXXXXX
Invention 2 XXXXXX
Invention 3 XXXXXX
Invention 4 XXXXXX
Invention 5 XXXXXX
Invention 6 XXXXXX
Schedule C-1
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SCHEDULE D
Developer's Manual covers the following topics:
XXXXXX
Development Environment consists of:
XXXXXX
Schedule D-1
